Citation Nr: 0738161
Decision Date: 12/05/07 Archive Date: 12/13/07
DOCKET NO. 05-25 367 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) and
Insurance Center in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for claimed hepatitis C.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
ATTORNEY FOR THE BOARD
K. Fitch, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1967 to March
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2003 rating decision of the RO
that denied the veteran's claim of service connection for
hepatitis C.
FINDINGS OF FACT
1. The veteran is not shown to have manifested complaints or
findings of hepatitis or related risk factors in service.
2. The currently demonstrated hepatitis C infection is not
shown to be due to any event or incident of the veteran's
period of active service.
CONCLUSION OF LAW
The veteran is not shown to have a disability manifested by
Hepatitis C due to disease or injury that was incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 5107
(West 2002); 38 C.F.R. §§ 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at
38 C.F.R. § 3.159, amended VA's duties to notify and to
assist a claimant in developing the information and evidence
necessary to substantiate a claim.
Under 38 U.S.C.A. § 5103, VA must notify the claimant of the
information and evidence not of record that is necessary to
substantiate the claim, which information and evidence that
VA will seek to provide and which information and evidence
the claimant is expected to provide. Furthermore, in
compliance with 38 C.F.R. § 3.159(b), the notification should
include the request that the claimant provide any evidence in
the claimant's possession that pertains to the claim.
By way of a letter dated in January 2003, the veteran was
furnished notice of the type of evidence needed in order to
substantiate his claim. The veteran was also generally
informed that he should send to VA evidence in his possession
that pertains to the claim and advised of the basic law and
regulations governing the claim, the cumulative information
and evidence previously provided to VA (or obtained by VA on
the veteran's behalf), and provided the basis for the
decisions regarding the claim.
The veteran was provided with adequate notice of the evidence
which was not of record, additional evidence that was
necessary to substantiate the claim, and he was informed of
the cumulative information and evidence previously provided
to VA, or obtained by VA on his behalf.
For these reasons the Board finds that VA substantially
complied with the specific requirements of Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (identifying evidence to
substantiate the claim and the relative duties of VA and the
claimant to obtain evidence); Charles v. Principi, 16 Vet.
App. 370 (2002) (identifying the document that satisfies the
VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the
notice requirement, pertaining to the evidence in the
claimant's possession or a similar request to that effect).
In this context, it is well to observe that VCAA requires
only that the duty to notify be satisfied, and that claimants
be given the opportunity to submit information and evidence
in support of their claims. Once this has been accomplished,
all due process concerns have been satisfied. See Bernard v.
Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet.
App. 553 (1996).
In addition, where the claims involve basic entitlement to
service connection, the United States Court of Appeals for
Veterans Claims (Court) held that the VCAA requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply all of
the elements of a claim for service connection, including
notice that a disability rating and effective date will be
assigned if service connection is awarded. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
Despite the defective notice provided to the veteran on these
latter two elements, however, the Board finds no prejudice to
the veteran in proceeding with the issuance of a final
decision. See Bernard v. Brown, supra. In this regard, as
the Board concludes below that the preponderance of the
evidence is against the veteran's claim, any questions as to
the appropriate disability rating or effective date to be
assigned are rendered moot.
The Board also finds that VA has made reasonable efforts to
assist the veteran in obtaining evidence necessary to
substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). In
particular, the information and evidence associated with the
claims file consists of the veteran's service records, post-
service treatment records and reports, a VA examination, and
statements submitted by the veteran and his representative in
support of the claim.
Based on the foregoing, the Board concludes that there is no
identified evidence that has not been accounted for with
respect to the veteran's claim and that, under the
circumstances of this case, VA has satisfied its duty to
assist the veteran. Accordingly, further development and
further expending of VA's resources is not warranted. See
38 U.S.C.A. § 5103A.
II. Entitlement to service connection.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or for aggravation of a pre-existing
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
If a condition noted during service is not shown to be
chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b).
The regulations also provide that service connection may be
granted for any disease diagnosed after discharge when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
For certain chronic diseases, a presumption of service
connection arises if the disease is manifested to a degree of
10 percent within a year following discharge from service.
38 C.F.R. § 3.307, 3.309.
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). The Board is charged with
the duty to assess the credibility and weight given to
evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001);
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the
Court has declared that, in adjudicating a claim, the Board
has the responsibility to do so. Bryan v. West, 13 Vet.
App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet.
App. 614, 618 (1992).
Following a careful review of the record, the Board finds
that service connection is not warranted for hepatitis C.
Here, the Board notes that the veteran has been diagnosed as
having hepatitis C. Although the Board has reviewed the lay
and medical evidence in detail, the Board will focus its
discussion on evidence that concerns whether the veteran's
current condition is related to disease or injury in service.
In this case, the service medical records are silent for risk
factors, symptoms, or complaints that would indicate that the
veteran might have contracted hepatitis C in service. The
earliest indication of hepatitis C is a diagnosis of this
condition dated in April 2002, over 30 years after service.
In order to determine whether the veteran has hepatitis C
that was related to military service, the veteran was
afforded a VA examination in June 2005. The examiner
indicated that the claims file had been reviewed in
connection with the examination.
The veteran was noted to have been diagnosed with hepatitis C
in April 2002. Regarding risk factors for hepatitis C in
service, he reported being exposed to blood and handling dead
bodies.
The VA examiner noted non-service related risk factors, to
include a known history of IV drug use, and indicated that
LFTs were normal until this year. The examiner then stated
that "[u]pon review of available records, it [was his]
opinion that it [was] not at least as likely as not that the
veteran contracted Hepatitis C in Vietnam, than through his
long history of polysubstance dependence, including IV drug
use."
Based on the foregoing, the Board finds that the medical
evidence is against a finding that the veteran's hepatitis C
is related to any event or incident of the veteran's period
of active service.
In this regard, the Board notes that the VA examiner, who
reviewed the claims file, indicated that the veteran likely
did not contract hepatitis C in the Republic of Vietnam, but
rather that it was more likely the result of the veteran's
polysubstance dependence, including IV drug use.
The veteran was not diagnosed until April 2002, and no
competent evidence has been submitted to support his lay
assertions that his current disability is due to an infection
or exposure during his period of active service.
While the veteran may feel that his condition is related to
his service, the Board notes that, as a lay person, the
veteran is not competent to establish a medical diagnosis or
show a medical etiology; such matters require medical
expertise. 38 C.F.R. § 3.159(a)(1) (competent medical
evidence means evidence provided by a person who is qualified
through education, training or experience to offer medical
diagnoses, statements or opinions); see also Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992).
In this case, as the medical evidence is against a finding
that the veteran's hepatitis C is related to any event or
incident of his active service, service connection must be
denied.
ORDER
Service connection for hepatitis C is denied.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs